Help needed- Where do I go from here?

[Marineleo]

I am absolutely dumbfounded by the VA's inability to read !  My husband filed a disability claim for the removal of 1/3 of his Intestine (and the large painful residual scar) that was done WHILE ACTIVE DUTY. (The resection was specifically filed as 38 CFR § 4.114 - Schedule of ratings -digestive system.   7329 - Intestine, large, resection of:  With symptoms, objectively supported by examination findings). They denied it, so we added supplemental information which included copies of his Service Treatment Records (Attached) that clearly show they did a Hemicolectomy, AKA Resection of Large Intestine.  We later submitted an Independent Medical Opinion from his primary care Dr that stated that he has ongoing symptoms and that these symptoms were "more likely than not" a result of the resection of his large intestine which occurred in service and also submitted color photographs of the very large abdominal scar with and without scale.  They denied it again so we filed a CUE. They finally after 2 years sent him for a C & P exam at which he handed the examiner his service treatment records.  She wrote that she thought he "may have had a resection of his SMALL intestine" (which is a totally different procedure name than the Hemicolectomy cited in his operative report).  They also requested a medical opinion from another one of their own Dr's who wrote "It appears the Veteran had surgery in 1982 prior to enlistment".  Wait, What??!! Nope, He never had any kind of surgery before enlisting in 1984- as evidenced on his enlistment physical records.  She also stated that "There is no evidence in the Veteran's Service treatment records consistent with any intestinal issues or a partial colectomy".  And now they've denied it AGAIN !

The denial letter reads; Service Connection for Intestinal Bleed & Colon removal, claimed as Resection of Large intestine is denied since this condition neither occurred in nor was caused by service.  

Your service treatment records do not contain complaints, treatment, or diagnosis for this condition.  

We did not find any link between your medical condition and military service.

Your VA Medical Opinion stated the claimed condition was likely than not (less than 50 % probability) incurred in or caused by the claimed in service injury, event, or illness.  All of your medical records were reviewed. There is no evidence of any intestinal issue that would lead to surgery during active service.

The VA exam conducted on April 12, 2019 diagnosed you with resection of the small intestine, GI bleeding with Polyps.  

Service Connection for Scarring, residuals of Resection of Large intestine is denied since this condition neither occurred in nor was caused by service.  

Your service treatment records do not contain complaints, treatment, or diagnosis for this condition.  

We did not find any link between your medical condition and military service.

The VA exam conducted on April 12, 2019 for scars and disfigurement diagnosed a linear scar on midline abdomen, residual of partial colectomy.  

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In the evidence listed that they considered is his service treatment records, the DBQ, THEIR Dr's medical opinion, but conveniently did not consider the CUE letter (with attachments) we filed, the IMO from his primary care Dr, or the photographs we submitted of the scar.

So we filed another CUE and a request for a higher level review.  My question is what else can we possibly do?  The VSO straight up told us to hire an attorney but it seems ridiculous to give them the $ when the information is right there in black & white IN HIS SERVICE TREATMENT RECORDS!!!   Anyone have any suggestions at all?   I was thinking about going to the VARO (Bay Pines) and submitting information on nearby literacy classes for them since they clearly can't read??

*See attached service records- (Identifying info redacted- the copies we gave the VA weren't)

 

Service Records Redacted and Highlighted .pdf

[Berta]

Geez I made an error - the first sentence should be This is a claim of Clear and Unmistakable error, filed under auspices of 38 USC, 5109 (a) so sorry-  it should not make a difference ,but that is the right citation-

I had to batten down the hatches for a  sudden storm...and am trying to remove the double posts. 

[Marineleo]

I just wanted to give everyone an update;

     We just got our phone call from the higher level reviewer- (HLR request filed May 10).  He was out of the Seattle Office and we FINALLY got someone who knows how to read!!!    I was getting ready to start quoting law to him and he told us immediately he's a veteran himself and wanted to apologize profusely for the clear errors on this claim.  He stated that he is documenting that the VA failed in their duty to assist and that the medical opinion listed in the file is "complete and total crap".  Apparently the Dr who wrote the medical opinion contacted the VA and offered her apologies stating that she realized she was mistaken in stating that his STRs had no documentation of intestinal issues or resection. (It might have had something to do with a certified letter we sent to her advising her we were considering legal action for medical malpractice due to her completing medical documentation in gross deviation from the facts of record available to her which she inaccurately cited.)  He said that the VA already ordered a NEW opinion which is completed and favorable but since it was done AFTER the HLR was filed, he technically is not allowed to use that for consideration.  

So, Long story short is he is filing the notice of error and basically "remanding" it back to the decision board because he said once that happens, they will officially have access to the new opinion and can issue the service connection.  He is also documenting that our claim has been continuously executed for the last 2 1/2 + years and that the service connection date should go back to the original filing date.  Nothing "official" yet, but he estimated we should have service connection within 60 days.  I will post an update when we get it confirmed!

 

[doc25]

19 hours ago, Marineleo said:

I just wanted to give everyone an update;

     We just got our phone call from the higher level reviewer- (HLR request filed May 10).  He was out of the Seattle Office and we FINALLY got someone who knows how to read!!!    I was getting ready to start quoting law to him and he told us immediately he's a veteran himself and wanted to apologize profusely for the clear errors on this claim.  He stated that he is documenting that the VA failed in their duty to assist and that the medical opinion listed in the file is "complete and total crap".  Apparently the Dr who wrote the medical opinion contacted the VA and offered her apologies stating that she realized she was mistaken in stating that his STRs had no documentation of intestinal issues or resection. (It might have had something to do with a certified letter we sent to her advising her we were considering legal action for medical malpractice due to her completing medical documentation in gross deviation from the facts of record available to her which she inaccurately cited.)  He said that the VA already ordered a NEW opinion which is completed and favorable but since it was done AFTER the HLR was filed, he technically is not allowed to use that for consideration.  

So, Long story short is he is filing the notice of error and basically "remanding" it back to the decision board because he said once that happens, they will officially have access to the new opinion and can issue the service connection.  He is also documenting that our claim has been continuously executed for the last 2 1/2 + years and that the service connection date should go back to the original filing date.  Nothing "official" yet, but he estimated we should have service connection within 60 days.  I will post an update when we get it confirmed!

 

Awesome news!